United States v. Zelaya-Funez

Before
the Court is the Motion to Authenticate Plea Agreement and
for Pre-Trial Ruling on the Admissibility of Plea Agreement
(Doc. 38) filed by the United States seeking authorization to
introduce, during its case-in-chief, the plea agreement
containing the factual stipulation agreed to by Defendant,
Victor Zelaya-Funez, and the supplement to the plea
agreement. Defendant has filed an Opposition. (Doc. 47). A
hearing on the motion was held on February 27,
2018.[2] (Doc. 49). On April 10, 2018, the Court
addressed Defendant regarding the potential conflict of
interest with his defense counsel's representation for
this particular motion.[3] (Doc. 65). At this hearing and
subsequent status conferences, both the United States and the
Defendant argued that their respective opponent bore the
burden of proving the elements required for the admissibility
or exclusion of the plea agreement at trial. (Id.;
Doc. 69). As such, the Court took the matter under
advisement. The Court will now address the issue of the
burden of proof only.

I.
BACKGROUND

On July
12, 2017, Defendant, Victor Zelaya-Funez was charged in a
two-count indictment with sexual exploitation of a minor, in
violation of 18 U.S.C. § 2251(a) and (e), and possession
of child pornography, in violation of 18 U.S.C. §
2252A(a)(5)(B). (Doc. 1). On December 21, 2017, at
Defendant's request, the United States filed a notice of
intent to plead guilty pursuant to a plea agreement. (Doc.
32). The agreement contains a written stipulation of facts
and provides that if Defendant failed to plead guilty, any
statements and information provided by Defendant, including
the written factual basis contained in the plea agreement,
the supplement to the plea agreement, and the plea agreement
itself, could be used against him in this or any other
prosecution. (Doc. 38-2 at p. 10). On January 9, 2018, at
Defendant's subsequent re-arraignment hearing, defense
counsel informed the Court that Defendant had chosen to not
plead guilty. (Doc. 34). At the hearing, Defendant did not
plead guilty and informed the Court that he instead wished to
proceed to trial. (Id.). However, before the
proceeding ended, the signatures appearing on the plea
agreement and supplement to the plea agreement-including
those of Defendant, defense counsel, Acting United States
Attorney, and the Assistant United States Attorney-were
authenticated on the record. (Doc. 38-3 at p. 7).

On
January 25, 2018, the United States filed the instant motion
seeking authorization to introduce the factual basis
contained in the plea agreement, the plea agreement itself,
and the supplement to the plea agreement during the United
States' case-in-chief at trial. (Doc. 38).

II.
LEGAL STANDARD

Ordinarily,
statements made by a Defendant during plea discussions are
protected from evidentiary use by Rule 410(a) of the Federal
Rules of Evidence and by Rule 11(f) of the Federal Rules of
Criminal Procedure.[4] A criminal defendant may waive the
protections of Rules 410(a) and 11(f), so long as the waiver
is explicit, knowing, and voluntary, for the purpose of
impeachment, and for admission in the government's
case-in-chief. United States v. Escobedo, 757 F.3d
229, 233 (5th Cir. 2014) (citations omitted). The Supreme
Court has held that "absent some affirmative indication
that the agreement was entered into unknowingly or
involuntarily, " a signed plea agreement waiving the
inadmissibility of a plea, a plea discussion, and any
relevant statement is valid and enforceable. United States u.
Nelson, 732 F.3d 504, 517 (5th Cir. 2013) (quoting United
States v. Mezzanatto, 513 U.S. 196, 210 (1995)).
Further, the government may use a defendant's statements,
made during plea negotiations, in its case-in-chief, provided
that "the defendant, as a condition to engaging in
negotiations with the government, knowingly and voluntarily
waived all rights to object to such use." Id.
(quoting United States v. Sylvester,583 F.3d 285,
288 n. 4 (5th Cir. 2009)).

The
United States argues that Defendant knowingly and voluntarily
waived the protection of Rules 410(a) and 11(f) when he
signed the plea agreement. Defendant argues that because he
never tendered a plea of guilty, the Court never made a
determination that any plea agreement by Defendant was
entered into knowingly and voluntarily. (Doc. 47 at p. 3).
Defendant further argues that the United States bears the
burden of establishing that Defendant clearly and
unambiguously waived his rights in the plea agreement.
(Id. at p. 2).

I.
Burden of Proof

The
United States Court of Appeals for the Fifth Circuit
construes a plea "agreement like a contract, seeking to
determine the defendant's 'reasonable
understanding' of the agreement and construing ambiguity
against the Government." Escobedo, 757 F.3d at
233 (quoting United States v. Farias,469 F.3d 393,
397 (5th Cir. 2006)); accord United States v.
Elashyi,554 F.3d 480, 501 (5th Cir. 2008) ("[A]
plea agreement is construed strictly against the Government
as the drafter."); United States v. Azure, 571
F.3d 769, 772 (8th Cir. 2009) ("The government bears the
burden of establishing that the plea agreement clearly and
unambiguously waives the defendant's right[s] [.]").

Here,
the United States has undoubtedly met its burden to establish
that the plea agreement clearly and unambiguously waives
Defendant's rights. First, the United States has defined
an action by Defendant that would constitute a material
breach as "failing to plead guilty to Count One of the
Indictment in Criminal No. 17- 90-BAJ-RLB at
re-arraignment." (Doc. 38-2 at p. 9). This was the
precise action taken by Defendant at his re-arraignment
hearing, and thus constitutes a clear and unambiguous breach
of the plea agreement. Second, under the section titled
"Consequences of Breach" the agreement provides:

In the event of a breach by the defendant . . . any
statements and information provided by the defendant pursuant
to this agreement (or the supplement to the plea agreement)
or otherwise, and any information and evidence derived
therefrom, may be used against the defendant in this or any
other prosecution or proceeding without limitation. Such
statements and information include, but are not limited to,
the plea agreement itself (including the factual basis
contained in Section D), the supplement to the plea agreement
. . . statements made in the course of any proceedings under
Rule 11, Fed. R. Crim. P. (including the defendant's
entry of the guilty plea), and statements made in the course
of plea discussions. ...

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